In NB Alternatives Advisers LLC v. VAT Master Corp. (Del. Ch. 22 Apr. 2021) (PDF here), the defendants wanted to litigate a matter in Wisconsin; the plaintiffs sought a permanent injunction. On an expedited basis, the Delaware Court of Chancery granted the injunction. Hall-of-fame tipster Glenn West then told me about it, so on an expedited basis, here we go. … Read More
The value offered by contract review enhanced by artificial intelligence is simple enough: reviewing contracts is challenging, so there’s a benefit to having someone look over your shoulder and offer advice, if you want it. But to really appreciate what it offers, you have to understand the stuff you can expect to review. It’s not pretty. The rest of this … Read More
One of the fringe benefits of my being LegalSifter‘s chief content officer—besides health insurance and all—is that I get exposed to a far broader range of contract language than would otherwise be the case. So today, I discovered that some drafters use is as a definition verb. I saw it first in a sample provision included in advice built into … Read More
Check out the provision above. It was put on Twitter by Aiden Durham, who said, “There’s gotta be a better way?!” Filthy McNasty tagged me in the ensuing thread, so here we are. The extract above is from an Arizona contract. Arizona has a “strict blue pencil” approach to enforcing post-employment restrictions on employees (generally known as “restrictive covenants”), which … Read More
When we speak with potential clients, some remark to us, with a sage nod, that, well, LegalSifter doesn’t mark up the draft being reviewed. To make sure we understand what they’re referring to, we looked into this. We quickly determined that what these companies are alluding to is something I’ve seen already. This post is on LegalSifter’s blog. To read … Read More
I’m overhauling my website, and today I was reminded that the page devoted to A Manual of Style for Contract Drafting has testimonials that were valuable 17 or 13 years ago but are no longer relevant. So I’d like to replace them. (Thank you again to those who submitted those testimonials; it’s time for a well-deserved rest.) I’d like to … Read More
Drafters can learn three things from courts screwing up analysis of ambiguity. First, you learn what ambiguous text looks like. Second, you learn that fights over ambiguous contract language are messy and expensive. And third, you learn that too many courts are incapable of analyzing ambiguous contract language in a way that makes sense; see this 2020 blog post for … Read More
The latest issue of World Commerce & Contracting’s Contracting Excellence Journal contains my article How Contract Managers Can Gain More Control Over Contracts (here). How do contract managers gain more control? By becoming informed consumers of contract language. And they should also consider using technology to help with review of draft contracts. (Yes, I have a horse in each of … Read More
Check out my latest video for LegalSifter, Ken’s Hot Take on Notices Provisions—all 8 minutes and 35 seconds of it. It’s available here. You can also get my latest and greatest notices provision and a list of related resources. Why notices provisions? Because I’ve been noodling with my notices provision over the past couple of years. Because I’ve revisited notices … Read More
The other day, Alex Hamilton dropped this on Twitter: Using "shall" in contracts, as suggested by @AdamsDrafting, has become a shibboleth. There are those who want to be modern, and those who've done their homework and are actually being modern. — Alex Hamilton (@AlexHamiltonRad) March 10, 2021 It’s been years since I’ve written anything about use of shall in contracts. … Read More
